November 9, 2016

The title of this post is the headline of this lengthy new Fusion commentary authored by Casey Tolan. The piece covers a lot of ground effectively in the wake of yesterday's election results and I recommend the piece in full. Here are some extended excerpts:

In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”

But Trump’s stunning victory — while scary for many other reasons — isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.

Overall, it was a mixed-bag election night for criminal justice. Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.

The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.

And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.

The president does not actually have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail....

Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.

Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani — or whoever Trump picks — could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election). And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.

Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened. “We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”

With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”

For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.

Comments

The biggest impact he'll have is on the Supreme Court. Granted, I didn't think Merrick Garland was great in this regard compared to Justice Scalia, but Trump would likely pick someone in the mold of Justice Alito and probably ten years younger than Garland.

Posted by: Erik M | Nov 10, 2016 8:43:37 AM

The Democrats are going through the stages of grief. Reminds me of a poem I read in the fifth grade:

Casey at the Bat
Ernest Lawrence Thayer

The outlook wasn’t brilliant for the Mudville nine that day:
The score stood four to two, with but one inning more to play,
And then when Cooney died at first, and Barrows did the same,
A pall-like silence fell upon the patrons of the game.

A straggling few got up to go in deep despair. The rest
Clung to the hope which springs eternal in the human breast;
They thought, “If only Casey could but get a whack at that—
We’d put up even money now, with Casey at the bat.”

But Flynn preceded Casey, as did also Jimmy Blake,
And the former was a hoodoo, while the latter was a cake;
So upon that stricken multitude grim melancholy sat,
For there seemed but little chance of Casey getting to the bat.

But Flynn let drive a single, to the wonderment of all,
And Blake, the much despisèd, tore the cover off the ball;
And when the dust had lifted, and men saw what had occurred,
There was Jimmy safe at second and Flynn a-hugging third.

Then from five thousand throats and more there rose a lusty yell;
It rumbled through the valley, it rattled in the dell;
It pounded on the mountain and recoiled upon the flat,
For Casey, mighty Casey, was advancing to the bat.

There was ease in Casey’s manner as he stepped into his place;
There was pride in Casey’s bearing and a smile lit Casey’s face.
And when, responding to the cheers, he lightly doffed his hat,
No stranger in the crowd could doubt ‘twas Casey at the bat.

Ten thousand eyes were on him as he rubbed his hands with dirt;
Five thousand tongues applauded when he wiped them on his
shirt;
Then while the writhing pitcher ground the ball into his hip,
Defiance flashed in Casey’s eye, a sneer curled Casey’s lip.

And now the leather-covered sphere came hurtling through the
air,
And Casey stood a-watching it in haughty grandeur there.
Close by the sturdy batsman the ball unheeded sped—
“That ain’t my style," said Casey. “Strike one!” the umpire said.

From the benches, black with people, there went up a muffled
roar,
Like the beating of the storm-waves on a stern and distant shore;
“Kill him! Kill the umpire!” shouted someone on the stand;
And it’s likely they’d have killed him had not Casey raised his
hand.

With a smile of Christian charity great Casey’s visage shone;
He stilled the rising tumult; he bade the game go on;
He signaled to the pitcher, and once more the dun sphere flew;
But Casey still ignored it and the umpire said, “Strike two!”

“Fraud!” cried the maddened thousands, and echo answered
“Fraud!”
But one scornful look from Casey and the audience was awed.
They saw his face grow stern and cold, they saw his muscles
strain,
And they knew that Casey wouldn’t let that ball go by again.

The sneer is gone from Casey’s lip, his teeth are clenched in hate,
He pounds with cruel violence his bat upon the plate;
And now the pitcher holds the ball, and now he lets it go,
And now the air is shattered by the force of Casey’s blow.

Oh, somewhere in this favoured land the sun is shining bright,
The band is playing somewhere, and somewhere hearts are light;
And somewhere men are laughing, and somewhere children
shout,
But there is no joy in Mudville—mighty Casey has struck out.

Posted by: anon20 | Nov 10, 2016 9:46:05 AM

Indeed, there is no joy among Democrats: the mighty Hillary "has struck out."

Posted by: Emily | Nov 10, 2016 11:36:46 AM

A wonderful poem and wonderfully apt.

Posted by: Dave from Texas | Nov 10, 2016 1:04:27 PM

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